On a day when same sex couples all over the state are celebrating their new right to marry in this state, the U.S. Supreme Court announced that it will hear two cases this term about same sex marriage: a challenge to a key section of the Defense of Marriage Act (DOMA), and the case against Prop 8.

Section 3 of the Defense of Marriage Act (DOMA) requires the federal government to discriminate against married same-sex couples and treat them as if they are not married resulting in increased estate tax burdens, lack of access to health benefits, and unequal treatment for government pensions, social security benefits, and vetran's benefits. This law has been hurting legally married same-sex couples and their families for 16 years and will continue to make same sex marriages less than equal until the law is struck down or changed.Several circuit courts have found the law unconstitutional but this is the first time the Supreme Court has agreed to take up the issue. The Court also agreed to review the challenge to Prop 8 brought by AFER, the American Foundation for Equal Rights.

Last Thursday, the Department of Homeland Security issued a letter clarifying that the definition of the phrase “family relationships” includes “long-term, same-sex partners,” and LGBT immigrants’ family relationships must be considered a relevant factor in deportation proceedings.

This doe not mean that same sex couple will be able to petition for permanent residency for their partners yet and won't be able to do so unlike the Defense of Marriage Act (DOMA) is overturned but it will have an impact on many families. The new policy will allow immigration officials so that they may consider LGBT immigrants’ families for purposes of exercising prosecutorial discretion in deportation proceedings. This may provide immigration protection and relief for some LGBT immigrants and their families, and prevent immigration officials from unnecessarily tearing apart bi-national same-sex couples.

Phinney Estate Law works with many same sex couples and understands how important passage of this referendum is for those families. The deadline is coming up for registering to vote in November for Referendum 74. The deadline for mail in registrations is October 6th and the deadline for online registrations is October 8th. King County tends to have a lower voter turn out percentage than other counties in part because people move here often and don't always keep their registration up to date. We encourage everyone to double check whether their registration is current and correct. It takes 30 seconds. You can register to vote online in minutes.

We invite our friends and clients to join us for a neighborhood Walk Together for Equality scheduled for 9/30/12 at 12:30 pm.

This walk has been organized by several Phinney-Greenwood faith communities. We will be meeting at the Woodland Park United Methodist Church at 78th and Phinney and walking 1.2 miles to St. John's United Lutheran Church at 55th and Phinney.

Organizers are hoping to show the wide range of support for the rights of same-sex partners to marry. Participants are encouraged to bring sign and banners with rainbow themes and messages of inclusion and support for marriage equality.

We don't normally report on cases outside of Washington State but the decision out of New York in Windsor v. United States has such important long term implications for our same sex couple clients, we had to make sure they got the news.

On June 6, 2012, in Windsor v. United States, U.S. District Judge Barbara Jones in the Southern District of New York granted summary judgment to Edith Windsor and created a precedent that is likely to positively affect same-sex married couples for years to come. Edith was awarded $353,053, plus interests and costs for the federal estate tax that she was wrongfully required to pay upon the death of her beloved wife. Edith met her late spouse, Thea, nearly 50 years ago in New York City. Even though no state in the United States afforded legal recognition to same-sex couples, in 1967, Thea proposed to Edith. In 1977, Thea was diagnosed with multiple sclerosis, which gradually debilitated her over the years and made her a quadriplegic. After being engaged for 40 years, in 2007, Thea and Edith decided to legally marry in Canada since same-sex couples were still not permitted to marry under New York law. Their marriage in Canada was recognized in New York because New York affords legal recognition to civil marriages that are lawful in the jurisdiction where they are performed. See Matter of the Estate of Ranftle, No. 4585-2008 (N.Y. Sur. Ct. Jan. 26, 2009). On February 5, 2009, Thea lost the fight against her health battles and passed away, leaving her entire estate to Edith. In June 2011, New York became the sixth state to allow same-sex couples to marry. While Thea's estate slightly exceeded the applicable federal exclusion amount set forth in 26 U.S.C. 2010(c), under 26 U.S.C. § 2056(a), a decedent's estate is generally entitled to an unlimited marital deduction for the value of any property that passes from the decedent to his or her surviving spouse. Whether a couple is married for purposes of the estate-tax marital deduction hinges on whether the couple is considered validly married under the law of the state. See Eccles v. Comm'r, 19 T.C. 1049, 1051, 1053-54 (1953). While on its face, the estate-tax marital deduction applies to all legally married couples, same-sex couples have been denied these benefits due to the plain language of the Defense of Marriage Act (DOMA). Section 7 of DOMA provides:"[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or wife." 1 U.S.C. § 7." Due to DOMA, the Internal Revenue Service excluded same-sex spouses from the benefits of the estate-tax marital deduction. This consequently caused Thea's estate to owe $363,053 in federal estate tax, which is an amount that the estate would not have had to pay if she married a male. In 2010, Edith challenged the federal government's refusal to recognize her marriage—that was deemed valid under New York law—for federal estate-tax purposes, and she won. In February 2011, President Obama's administration came to the conclusion that Section 3 of DOMA, which bars the federal government from recognizing the legal marriages of same-sex couples, is unconstitutional and decided that the U.S. Department of Justice would no longer defend such discrimination in court. The Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG) intervened to defend the constitutionality of DOMA and argued that DOMA provides a federal definition of marriage and it is what is "universally accepted in American law." Windsor v. United States, 1:10-cv-08435 BSJ-JCF, p. 18. Judge Jones of the Southern District of New York disagreed with BLAG and held that DOMA's definition of marriage does not pass constitutional muster and is unconstitutional as applied to Edith. As a result of this groundbreaking case, couples living in states that license or respect same-sex marriages are now entitled to equal treatment for federal estate-tax purposes. This case also suggests that executors of estates involving a same-sex surviving spouse may be entitled to a refund of federal estate taxes that they may have been wrongfully required to paid.

Washington's Estate tax, which applies to many more couples in Washington because it has a personal exemption of $2 million, already grants the unlimited exemption to registered domestic partners. This case, if upheld by Supreme Court could extend that same equality to the federal level.

If you are in a same sex relationship and would more information on issues that might affect your estate plan, contact us for a free 1/2 hour consultation at info@phinneyestatelaw.com or (206) 459-1908.

Phinney Estate Law is proud to endorse Ref. 74 to confirm the right of same sex couples to marry. We work with many same sex couples on estate planning, probate, and family law cases.

Working with these couples will never be exactly like planning for opposite sex married couples until Federal Law changes to eliminate the discrimination in benefits and tax rights but we were so proud of the Washington State Legislature for passing the same sex marriage bill in Washington to make things in this state no longer "separate but equal" but just equal.

We were disappointed that the opponents of equality were able to get enough signatures to require the matter to go before voters. We hope it will turn out to be a chance for all voters to show they support equality just as much as their representatives. What we hope will not happen is that people will be confused about earlier messages not to sign the petitions and think that voting no is the right way to vote. So this will the be first of many reminders from us that if you, like us, support marriage equality to you want to vote YES on Ref. 74 this fall. Want get more involved, learn how at Washington United for Marriage.

Phinney Estate Law attorney Jamie Clausen has been serving as the Chair of Legal Affairs committee of the NW LGBT Senior Care Network. This month she also took over as Communications Director for the organization. As communications director she will be in charge of their website and online membership directory.

NW LGBT Senior Care Network is nonprofit that advocates for the need of the LGBT community as it ages and seeks to make sure that services are available that are respectful, aware, and inclusive. Our website is intended to be a resource for the community and list of service providers who are committed to non-discrimination and inclusion.

Jamie Clausen has been a LGBT rights activist since 1995 when she founding the University of Washington's first straight alliance group for LGBT rights "Friends of Pride Dawgs" and served as media relations director for the successful movement to have the University of Washington become the first major University in the United States to provide domestic partnership rights to students. She is excited to be working with the Network to advocate for an often ignored portion of the LGBT community in this important way. Too often LGBT seniors are denied services or forced back into the closet because of a lack of awareness of available resources. It is a situation that must change.

If you would like information on how to get involved because check out the newly launched website or contact Jamie at (206) 459-1908.

Recently released census data shows an increase in same sex couple throughout Washington State. The greatest concentration of couples continue to be on Vashon Island and Seattle but the census shows most of the growth has been in neighborhoods other than Capital Hill (West Seattle grew 55%!) and in the suburbs and Eastern Washington.

Some of this growth may be due to the rights provided to registered domestic partners in this state and its perception as a friendly area to move to. It is likely that other growth simply reflects that more couples are comfortable sharing their status with the census than they were even 10 years ago.

The census data also reflects a growth in same couples raising children showing that now 20% of all same sex couples are raising children together.

At Phinney Estate Law we are committed to helping all families create estate plans that are right for them and pride ourselves on our service to same sex couples, who often face special challenges become of a lack of recognition at the federal level. If you like to set up a free consultation to talk about creating a plan for your family, contact us at info@phinneyestatelaw.com or (206) 459-1908

PEL Blog

This Blog is written by Seattle Attorneys Jamie Clausen & Michael Ballnik. It is made available for educational purposes only. Its purpose is to give you general information and a general understanding of the law, not to provide specific legal advice. Reading this blog does not create an attorney client relationship between you and Phinney Estate Law. Because each individual and family is unique, the Blog should not be used as a substitute for legal advice from a licensed professional attorney in your state.